ADA Amendments Now in Effect

Just as many in the construction industry gain a full understanding of the Americans with Disabilities Act (ADA) of 1990, changes to the law took effect on January 1, 2009. These changes, known as the ADA Amendments Acts (ADAAA), broaden the definition of "disabled," and potentially expose employers with 15 or more employees to increased financial liabilities.

There are three significant changes that employers need to know.  First, with the exception of regular eyeglasses and contact lenses, both applicants and employees must now be evaluated without regard to any available devices such as prosthetics and hearing aids, or medications when determining whether a disability exists.  Second, the list of "major life activities" has, for the first time, been extended to include the operation of major bodily functions.  Third, an applicant or employee may be able to claim discrimination if the employee is "regarded as" having a disability because of an actual or perceived impairment (lasting longer than six months) despite whether or not a "major life activity" is substantially limited. 

Employers are advised to take measures to ensure compliance with these federally mandated changes, such as:

• Be certain that all ADA-related policies, as well as assessment, complaint, and accommodations request procedures are well-documented. 
• Schedule mandatory training sessions with all managers, supervisors, and interviewers to discuss the revised policies and procedures.  Keep a dated, signature page of attendees with the original copies of the rest of your ADA-related documents. 
• Develop forms and letter templates now, so that you only have to plug in critical employee information when a situation arises. 
• If you haven't already done so, make sure that all job descriptions clearly spell out the "essential" functions of the job.  It's a good idea to have each applicant and employee verify that they can perform these "essential" duties with or without accommodation.  A signature line at the bottom of the job description should be sufficient. 
• Keep employee-specific ADA requests and other information separate from personnel files.  Instead, keep this information in the employee's health information and/or benefits file for safe keeping.

Overall, officials will want to know that you have been consistent in the way you handle each case, and these measures will help you to do so. As always, it is important to also make sure that applicable state disability laws are followed, which, at times may be more generous to applicants and employees.  For help with your company's specific concerns, consult an employment attorney licensed to practice in your state.  For a list of attorneys who regularly represent AGC chapters and members on labor and employment matters, visit www.agc.org/lelc and click on the LELC Roster link. For a full copy of the ADA Amendments Act, click here. For more ADA resources, visit AGC's Labor & HR Topical Resources web page and select the category EEO, subcategory Americans with Disabilities Act.